United States v. Turner ( 2022 )

Case: 21-40634 Document: 00516458900 Page: 1 Date Filed: 09/02/2022
United States Court of Appeals United States Court of Appeals
for the Fifth Circuit
Fifth Circuit
FILED
September 2, 2022
Lyle W. Cayce
No. 21-40634 Clerk
United States of America,
Plaintiff—Appellee,
versus
Cody Ryan Turner,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:20-CR-272-1
Before Jones, Ho, and Wilson, Circuit Judges.
Per Curiam: *
After a three-day jury trial, Cody Ryan Turner was convicted of
attempted coercion and enticement of a minor in violation of 18 U.S.C.
§ 2422(b). He asks this court for a new trial based on two of the district
court’s evidentiary rulings. Because the district court’s rulings were not in
error, the judgment is AFFIRMED.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-40634 Document: 00516458900 Page: 2 Date Filed: 09/02/2022
No. 21-40634
BACKGROUND
Turner attempted to execute a plan to meet up with a 13-year-old girl
he had been conversing with online for the purpose of engaging in sexual
activity with her. Using a messaging app, he sent sexually suggestive
messages to a profile with the username “Becka Gerl,” which was
represented by a photo of a young girl with braces sticking out her tongue.
After initially not responding to his messages, she eventually told him that
she was only 13 years old and that he likely was confusing her with someone
else. Undeterred, he offered to be her “sugar daddy” if she was willing to
meet with him in secret. Becka Gerl expressed hesitancy at first, but after
Turner persisted, she eventually showed interest in meeting. The two
continued conversing over the next couple of months. The conversation was
primarily sexual in nature, with Turner proposing that he “teach” Becka
Gerl how to engage in various sexual acts at their eventual meeting.
On September 8, 2020, they agreed that Turner would drive from
Irving, Texas to Becka Gerl’s apartment in Plano, Texas for this sexual
encounter. He urged her to remain “open minded to all things sex.” But
before Turner drove to the apartment, he asked Becka Gerl whether she was
“a cop or part of a sting unit.” She said no. He further noted: “You are very
young so there is a big risk for me. Just want to verify.” He followed up with:
“But I do want to cum over now.” And thus he left for her apartment.
Fortunately, Becka Gerl was actually Special Agent Jennifer Mullican,
a member of the FBI’s child exploitation task force. When Turner arrived at
the address Becka Gerl provided, he was met with law enforcement officers
and was promptly arrested. Turner’s defense from the moment he was
arrested was that he thought the whole chat was “BS” and that he was
conversing with an adult posing as a minor for purposes of “role-play.” He
said that he drove to the apartment complex to “call out” whomever was
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behind the chat, never actually believing a real 13-year-old girl awaited him.
During questioning, he also volunteered that, in 2009, he had been arrested
in Fort Worth, Texas for online solicitation of a minor who was also 13 years
old. 1 When Turner’s criminal history checks came back clear, Turner
explained that the former arrest had been expunged “because of the– the
same thing that I’m trying to explain now.” He elaborated that he felt the
“same thing I felt in ’09,” namely that the chats were all fake. According to
him, he previously played this game of “role-play” with the “fake” child on
the other end, but this was the first time he tried to meet in order to “call BS
on” the other person.
A grand jury indicted Turner on one count of attempting to persuade
or entice a minor to engage in sexual activity, and the case went to trial.
Relevant here, two evidentiary disputes arose during the trial. First, the
Government sought to admit evidence of Turner’s statements regarding his
2009 arrest for online solicitation of a minor. It contended that this prior
arrest was relevant to discern Turner’s intent in driving to Becka Gerl’s
apartment in light of his defense that this whole ordeal was part of some
“role-play” game. The defense objected, contending that this was
propensity evidence under Federal Rule of Evidence 404(b). The district
court allowed the evidence due to the “clash about what the defendant’s
intent was,” and it explained that “evidence of an uncharged offense for
solicitation of a minor is relevant to intent, a proper non-character issue
under Rule 404(b), because it requires the same intent as the charged offense
and because evidence of this uncharged offense lessens the likelihood that the
defendant committed the charged offense with innocent intent.” The court
1
Unlike here, he had not actually gone to meet the previous girl but was arrested
in his apartment.
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also gave the jury a limiting instruction both when the evidence was offered
and when the jury was given final instructions.
Second, the defense challenged as irrelevant the admission of
evidence showing that, while Turner was arranging to meet up with Becka
Gerl, he was also texting adults to arrange for commercial sex in Plano that
same day. The Government countered that commercial sex was Turner’s
back-up plan in the event things did not go as planned with Becka Gerl, and
that the evidence was thus relevant to establish that he intended “sex . . . to
happen in some way, shape, or form on September 8th, 2020.” The district
court again agreed, concluding that the evidence was admissible under
Rule 404(b) because it went “to Mr. Turner’s intent in appearing at the
prearranged meet-up location in Plano, Texas, which Mr. Turner has
squarely put at issue in this case.” This evidence was “necessary to
corroborate other evidence the government would put in of Mr. Turner’s
actual intent on that day.” The court further concluded that, even though
the communications with sex workers “may be somewhat prejudicial to
Mr. Turner,” any prejudicial effect did “not substantially outweigh their
probative value.” The district court again issued limiting instructions both
when the evidence was presented to the jury and in the final jury instructions.
The jury convicted Turner as charged. The district court sentenced
Turner to 120 months in prison and 10 years of supervised release. Turner
timely appealed.
STANDARD OF REVIEW
The district court’s evidentiary rulings are reviewed for abuse of
discretion, with heightened review in criminal cases. See United States v.
Kinchen, 729 F.3d 466, 470 (5th Cir. 2013). “A trial court abuses its
discretion when its ruling is based on an erroneous view of the law or a clearly
erroneous assessment of the evidence.” Id. at 470–71 (quoting United States
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v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008)). But erroneous admissions
under Rule 404(b) are not reversible if the error was harmless. Id. at 471.
DISCUSSION
Based on the admission of his 2009 arrest and his arrangements for
commercial sex, Turner asks this court to vacate his conviction and remand
for a new trial. We decline to do so. The district court did not abuse its
discretion when ruling on these evidentiary issues. 2
Rule 404(b) permits the admission of evidence of other crimes for
purposes other than to prove the defendant’s character, such as to prove
“motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” FED. R. EVID. 404(b). Even for
such purposes, however, proof of an uncharged crime or other act must be
sufficient to support, by a preponderance of the evidence, a conclusion that
the prior “act actually occurred.” United States v. Ramos-Rodriguez,
809 F.3d 817, 821 (5th Cir. 2016). Federal Rule of Evidence 403 also requires
that the probative value of the evidence not be “substantially outweighed by
a danger of one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” FED. R. EVID. 403. This court gives
“great deference” to the district court’s “informed” decision under
Rule 403. United States v. Williams, 620 F.3d 483, 491 (5th Cir. 2010)
(internal quotation marks omitted). Accordingly, this court will not reverse
a Rule 403 decision absent “a clear showing of prejudicial abuse of
discretion.” Id. (internal quotation marks and citation omitted).
2
But even if it had, any error would have been harmless in light of the
overwhelming evidence of guilt presented at trial.
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I. Turner’s 2009 Arrest
Turner argues that the admission of his 2009 arrest was an abuse of
discretion because (1) the Government failed to prove by a preponderance of
the evidence that the arrest actually occurred; (2) it constituted propensity
evidence admitted for an improper purpose; and (3) any probative value of
the 2009 arrest is substantially outweighed by the danger of unfair prejudice.
Each point is unavailing.
The Government plainly met its burden of establishing that Turner
was arrested in 2009. Turner himself volunteered that the arrest occurred
and provided specific details to law enforcement, including when and where
the arrest occurred and the child’s age. Turner provides no evidence to
suggest that he was lying to officers when he recounted these facts. See
United States v. Smith, 804 F.3d 724, 733 (5th Cir. 2015).
And the district court was well within its discretion to admit the
evidence. Turner put his intent at issue by arguing that he did not believe
Becka Gerl was a minor and by suggesting that he was at the apartment
complex to “call BS on” the adult behind the fake account. The defense told
the jury during closing arguments that Turner did “not intend to have sexual
relations with Becka Gerl that day” but, rather, he was merely engaged in
“role play” and he went to the apartment to “prove” that the person he was
communicating with was “a fake.” Evidence of prior acts that corroborate
or contradict this claim is both highly relevant and admissible as evidence of
intent. He thus rendered his 2009 arrest relevant by calling his intent into
question. See, e.g., United States v. Monsivais, 737 F. App’x 668, 672 (5th Cir.
2018) (unpublished) (holding that evidence of prior communication with
another minor was “highly relevant” and “directly responsive to several of
[the defendant’s] defenses,” including a role-playing defense); United States
v. Pierson, 544 F.3d 933, 941 (8th Cir. 2008) (defendant’s denial that he
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intended to actually have sex with a minor “opened the door to the admission
of his prior conviction for indecent contact with a child”).
That the arrest occurred 11 years ago does not change our conclusion.
See United States v. Arnold, 467 F.3d 880, 885 (5th Cir. 2006). The similarity
between the two arrests is evident. Indeed, Turner thought to compare his
2009 arrest with his present arrest during his conversation with the police.
Nor did the admission of this evidence offend Rule 403. As discussed, the
evidence is highly relevant, and Turner fails to identify how any prejudice
substantially outweighs this value, especially given the district court’s careful
limiting instructions.
II. Turner’s Commercial Sex Arrangements
Turner next contends that the evidence of his arrangements for
commercial sex were improperly admitted as irrelevant and highly
prejudicial. Both points are meritless.
The evidence is relevant because it illustrates Turner’s intent to
arrange and engage in sexual activity in Plano on the day of his arrest. While
he was arranging to meet with Becka Gerl, he was simultaneously sending
messages to arrange for prostitutes. The Government contended that, while
his preference was to have sex with the minor, if that did not work out, he
wanted to ensure that he would have other options. Turner calls this theory
“merely speculation,” but we disagree. In fact, during his conversation with
Becka Gerl, Turner acknowledged that their first encounter might not result
in intercourse because of how new this activity was to her. While he was
hopeful that it would, he assured her that they would take things slowly at
first. These messages tend to corroborate the Government’s theory that he
wanted to make sure he had a backup plan. Additionally, his arrangements
contradict his assertions that he traveled that distance simply to expose an
adult posing as a child. They indicate that he drove to Plano to have sex, one
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way or the other. Accordingly, we agree with the district court that this
evidence was highly probative.
Further, this evidence was not too prejudicial. The arrangement for
commercial sex and the arrangement for sexual activity with a minor are
sufficiently distinct that juror confusion is unlikely. Turner points to no other
evidence that could serve the same purposes. While the texts certainly do
not shed favorable light on Turner, they are not so prejudicial as to
substantially outweigh their probative value.
For these reasons, the judgment is AFFIRMED.
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